Saginaw Educ. Ass'n v. Eady-Miskiewicz

319 Mich.App. 422

902 N.W.2d 1

SAGINAW EDUCATION ASSOCIATION, Respondent–Appellant/Cross–Appellee,

v.Kathy EADY–MISKIEWICZ, Charging Party–Appellee/Cross–Appellant.

Michigan Education Association, Respondent–Appellant/Cross–Appellee,

v.Kathy Eady–Miskiewicz, Charging Party–Appellee/Cross–Appellant.

Saginaw Education Association, Respondent–Appellant/Cross–Appellee,

v.Matt Knapp, Charging Party–Appellee/Cross–Appellant.

Michigan Education Association, Respondent–Appellant/Cross–Appellee,

v.Matt Knapp, Charging Party–Appellee/Cross–Appellant.

Saginaw Education Association, Respondent–Appellant/Cross–Appellee,

v.Jason Laporte, Charging Party–Appellee/Cross–Appellant.

Michigan Education Association, Respondent–Appellant/Cross–Appellee,

v.Jason Laporte, Charging Party–Appellee/Cross–Appellant.

Saginaw Education Association, Respondent–Appellant/Cross–Appellee,

v.Susan Romska, Charging Party–Appellee/Cross–Appellant.

Michigan Education Association, Respondent–Appellant/Cross–Appellee,

v.Susan Romska, Charging Party–Appellee/Cross–Appellant.

Standish–Sterling Educational Support Personnel Association MEA/NEA, Respondent–Appellant,

v.Mark Norgan, Charging Party–Appellee.

Grand Blanc Clerical Association and Michigan Education Association, Respondents–Appellants,

v.Mary Carr, Charging Party–Appellee.

Battle Creek Educational Secretaries Association and Michigan Education Association, Respondents–Appellants,

v.Alphia Snyder, Charging Party–Appellee.

Nos. 329419, 329425, 329426, 329427, 329428, 329429, 329430, 329431, 331398, 331762, 331875.

Court of Appeals of Michigan.

Submitted March 15, 2017, at Lansing

May 2, 2017, 9:00 a.m.

Mackinac Center Legal Foundation (by Patrick J. Wright and Derk A. Wilcox ) for the charging parties in Docket Nos. 329419 and 329425 through 329431.

John N. Raudabaugh for the charging party in Docket No. 331398.

John N. Raudabaugh, Amanda K. Freeman, and Milton L. Chappell for the charging parties in Docket Nos. 331762 and 331875.

White Schneider PC (by James J. Chiodini, Jeffrey S. Donahue, and Catherine E. Tucker) and Michael M. Shoudy for respondents in Docket Nos. 329419 and 329425 through 329431.

White Schneider PC (by James J. Chiodini, Jeffrey S. Donahue, and Catherine E. Tucker) for respondents in Docket Nos. 331398, 331762, and 331875.

Before: Beckering, P.J., and O'Connell and Swartzle, JJ.

Per Curiam.

These consolidated appeals mainly concern the effects of legislative modifications of the public employment relations act (PERA), MCL 423.201 et seq. , since 2012—the legislation transforming Michigan into a so-called right-to-work state.

In Docket Nos. 329419 and 329425 through 329431, respondents, the Michigan Education Association (the MEA) and its local affiliate, the Saginaw Education Association, appeal as of right the September 23, 2015 decision of the Michigan Employment Relations Commission (the MERC) declaring in violation of PERA a union rule that allows members to resign only during a one-month window each year and ordering those respondents to accept resignations the charging parties offered outside that window. The attendant charging parties in turn cross-appeal that order insofar as it rejected their claim that respondents violated their duty of fair representation by not more actively informing their members of their resignation rights.

In Docket No. 331398, respondent, the Standish–Sterling Education Support Personnel Association MEA/NEA, appeals the January 15, 2016 decision of the MERC insofar as it, too, recognized the attendant parties' right to end their union affiliations at will.

In Docket Nos. 331762 and 331875, respondents—the MEA and its local affiliates, the Grand Blanc Clerical Association, and the Battle Creek Educational Secretaries Association—appeal as of right the February 11, 2016 decision of the MERC insofar as the MERC again held that the charging parties were entitled to end union affiliations at will. The latter union and the MEA additionally contend that the MERC erred by declining to dismiss the charge underlying Docket No. 331875 as untimely.

For the reasons set forth below, we affirm all the MERC decisions at issue.

I. STATUTORY AND PROCEDURAL HISTORY

A. RIGHT–TO–WORK LEGISLATION

Section 9(1)(a) of PERA, MCL 423.209(1)(a), establishes that public employees may organize themselves into collective bargaining units. 2012 PA 349, effective March 28, 2013, added § 9(1)(b), establishing that public employees may refrain from such activity. 2012 PA 349 also added Subsection (2), which prohibits any person from resorting to coercion to compel a public employee to become or remain a member of a labor organization, to compel a public employee to refrain from doing so, or to compel a public employee to support a labor organization financially. Section 10(1)(a) of PERA, MCL 423.210(1)(a), in turn prohibits a public employer from interfering with, restraining, or coercing public employees "in the exercise of their rights guaranteed in section 9." Section 10(2)(a) imposes the same prohibition on labor organizations while adding that it "does not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership." 2012 PA 349 added Subsection (3), which, but for exceptions not applicable here, prohibits requiring "an individual ... as a condition of obtaining or continuing public employment" to "[b]ecome or remain a member of a labor organization or bargaining representative," to support such an organization financially, or to "[r]efrain or resign from membership in, voluntary affiliation with, or voluntary financial support of a labor organization or bargaining representative." MCL 423.210(3). 2012 PA 53, effective March 16, 2012, amended § 10 to prohibit public school employers from using "public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees" except in connection with collective bargaining agreements already in effect when that provision became operative. MCL 423.210(1)(b).

B. DOCKET NOS. 329419 AND 329425 THROUGH 329431

The MERC's decision and order in connection with the eight cases involving the Saginaw Education Association included a convenient summary of the underlying facts:

[E]ach of the Charging Parties is employed by Saginaw Public Schools (Employer) and is part of the bargaining unit represented by the Respondent Saginaw Education Association (SEA). The SEA is a local affiliate of Respondent Michigan Education Association (MEA), and members of the SEA are also members of the MEA and the National Education Association (NEA) due to the organizations' unified membership structure.

Around the time they were hired, each of the Charging Parties signed a "Continuing Membership Application" agreeing to join Respondents' unions and authorizing the Employer to deduct union dues from their pay and transmit those funds to Respondent SEA. Just above the signature line on the application, there are two checkboxes, one for cash payment and one for payroll deduction. The language next to the cash payment checkbox states: "Membership is continued unless I reverse this authorization in writing between August 1 and August 31 of any year." The language next to the payroll deduction checkbox states: "I authorize my employer to deduct Local, MEA and NEA dues, assessments and contributions as may be determined from time to time, unless I revoke this authorization in writing between August 1 and August 31 of any year." ...

Article I of the MEA bylaws provides in relevant part: "... Continuing membership in the Association shall be terminated at the request of a member when such a request is submitted to the Association in writing, signed by the member and postmarked between August 1 and August 31 of the year preceding the designated membership year." ...

The collective bargaining agreement between the Employer and Respondent SEA that covered the 1995 to 1998 academic years contained a union security agreement and required the Employer to deduct union dues from employees' wages when authorized by the respective employees. That contract expired June 30, 1998. The subsequent collective bargaining agreements did not contain a union security agreement, but did require the Employer to deduct union dues from employees' wages when authorized by the respective employees. ...

2012 PA 53 ..., which amended PERA to prohibit public school employers from assisting labor organizations in collecting union dues or service fees, became effective March 16, 2012. However, where the public school employer collected dues or service fees pursuant to a collective bargaining agreement that was in effect on the effective date of Act 53, the prohibition did not apply until the contract expired. The collective bargaining agreement in place immediately prior to the matter at issue expired on June 30, 2013.

On December 11, 2012, the Michigan Legislature passed 2012 PA 349, which, among other things, expressly provided that public employees have a right to refrain from union activity and made agency shop illegal for most public employees.

On January 18, 2013, Respondent MEA prepared a letter designed to be provided to members who inquired about resigning from membership. The letter indicated that resignation from membership must be submitted in writing and postmarked during the annual August window period.

Pursuant to 2012 PA 53, which prohibited public school employers from collecting union dues or services fees from their employees, the Employer ceased dues deductions after the collective bargaining agreement with Respondent SEA expired on June 30, 2013. Subsequently, Respondents established an e-dues program to allow employees to pay their union dues electronically.... None of the four Charging Parties signed up for the e-dues program; nor did any of the four pay union dues after the Employer stopped dues deductions.

* * *

In September 2013, [three] Charging Parties ... sent letters to Respondents resigning

...